In January 2009, Beasley Allen filed a class action lawsuit on behalf of property owners affected by the catastrophic release of over a billion gallons of coal ash sludge. The release occurred on December 22, 2008, when a coal ash impoundment at the Tennessee Valley Authority (TVA) Kingston Fossil Plant ruptured sending a deluge of toxic slurry onto over 300 acres and into nearby waterways. The health and environmental ramifications from the TVA spill are enormous and clean up is slated to cost more than $1 Billion and continue for years to come.

December 22, 2009, marked the one-year anniversary of the spill, which is the largest industrial accident in U.S. history. The TVA disaster brought to the forefront the need for stricter oversight on how the coal fired power industry handles its waste. Unfortunately, EPA delayed its publication of new coal ash regulations. According to an EPA statement released on December 17, 2009, the agency’s “pending decision on regulating coal ash waste from power plants, expected this month, will be delayed for a short period due to the complexity of the analysis…However, the agency is still actively clarifying and refining parts of the proposal.” Since the 12/22 spill, evidence continues to mount in favor regulating coal ash waste and coal combustion wastewater.

Various reports from universities, environmental organizations, media outlets, and U.S. Congress point to the growing concern over coal ash disposal.

Toxic Coal Ash Threatens Health And Environment – The risks associated with coal ash disposal arises from the toxins found in the ash, and this independent report confirms that the TVA ash contains elevated levels of toxic elements. Researchers at Duke University and Georgia Tech published their analysis of the Kingston ash. The analysis found that the spilled Kingston sludge contains 75 parts per million of arsenic, 150 parts per billion of mercury, and eight picocuries per gram of total radium. A picocurie is a standard measure of radioactivity.

Steam Electric Power Generating Point Source Category: Final Detailed Study Report – In October 2009, the EPA issued a report on the health and environmental impacts of wastewater from coal fired power plants. The reports states that “[a]n increasing amount of evidence indicates that the characteristics of coal combustion wastewater have the potential to impact human health and the environment. Many of the common pollutants found in coal combustion wastewater (e.g., selenium, mercury, and arsenic) are known to cause environmental harm and can potentially represent a human health risk. Pollutants in coal combustion wastewater are of particular concern because they can occur in large quantities (i.e., total pounds) and at high concentrations…in discharges and leaching to groundwater and surface waters.”

Environmental Integrity Project (EIP) confirms that the TVA ash spill contained large quantities of pollutants. The EIP report analyzed TVA’s own data submitted to EPA’s Toxic Release Inventory (TRI) and found that the 12/22 spill released 2.66 million pounds of 10 toxic pollutants, including arsenic, barium, chromium, copper, lead, manganese, mercury, nickel, vanadium and zinc. Through its TRI reporting, TVA admitted to releasing over 4 times more lead and over twice the amount of arsenic than the entire power industry released in 2007. That year, the U.S. power industry reported releases of over 2 million pounds of toxic pollutants into our nation’s waterways.

Outside the Law: Restoring Accountability to the Tennessee Valley Authority

The call to hold TVA accountable for its pollution continues to grow. EIP issued a second report in December that calls for the Obama administration to prosecute TVA for its environmental violations.

Hazards of coal ash and the handling of this by-product of coal combustion are the subject of growing national media attention as well. CBS News aired a segment about coal ash on 60 Minutes and the New York Times ran an article on coal fired power plants in its series, Toxic Waters: A Series about the Worsening Pollution in American Waters and Regulators’ Response. The NY Times article stated that “[p]ower plants are the nation’s biggest source of toxic waste, and while much of that waste once went into the sky, because of toughened air pollution laws, it now often goes into lakes and rivers, or landfills that have leaked into nearby groundwater.” In the case of Kingston, 50 years of coal combustion waste currently resides in and around Watts Bar Reservoir.

Additionally, the U.S. Congress held another hearing in December to learn more about TVA’s cleanup activities, EPA’s regulatory plans, and the disposal of coal ash in Perry County, Alabama. During his testimony before the House Transportation and Infrastructure Sub-Committee on Water Resources and Environment, Acting EPA Region IV Administrator, Stanley Meiburg acknowledged that “the longer [the ash] sits there the more opportunity you have for something to happen.” In fact, Meiburg cited recent samples taken in the Clinch River that showed elevated arsenic levels.

During the same hearing, TVA CEO Tom Kilgore reported that about two-thirds of the ash that spilled has been removed from the Emory River and is on schedule to complete the river clean-up by spring of 2010 with the remaining cleanup projected to last until 2013, a full five years from the date of the spill.

The once pastoral community in eastern Tennessee will continue to be affected by the aftermath of the spill, and our class litigation seeks to hold TVA to its promise of cleaning up the Kingston community completely and making those affected whole again. While still early in the litigation process, quite a bit of work has been accomplished in this case already. TVA seeks immunity from suit, and our litigation team is working on the various discovery issues that a case of this magnitude involves.

What can I do?

Beasley Allen continues to review claims on behalf of residents and property owners affected by the Coal Ash Spill. Contact us today for a free legal consultation.

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